On September 9, 2009, a correction
officer at Woodbourne Correctional Facility in Sullivan County, where [Green]
then was incarcerated, was making his daily rounds when he observed a green
towel covering the window of [Green’s] cell. As the correction officer paused
to investigate, he overheard [Green] -- the sole occupant of the cell -- engaging
in what he characterized as a one-sided, business-like conversation.

After verifying that the surrounding
cells were empty, the correction officer notified a sergeant who, in turn,
ordered [Green] be removed from his cell and that a search thereof be
conducted.

While
[his] cell was being searched, the correction officer and the sergeant escorted
[Green] to the facility's recreation room and told him to sit down on a chair. [Green]
indicated he preferred to stand and, when the sergeant insisted that he sit, [he]
complied by sitting on the edge of the chair in what was described as a
`loung[ing] position.’ After being advised that the search of [his] cell
uncovered a cell phone charger on his bed, together with a password and a
collection of phone numbers stuffed in the toe of a shoe, the sergeant ordered
a strip frisk of [Green].

As [Green] was being escorted from the
recreation room for the strip frisk, the sergeant observed that [he] walked
with `an unusual gait.’ When [Green] thereafter was asked to remove his
underwear, he initially hesitated but ultimately pulled out a cell phone that
had been hidden in his buttocks. According
to an investigator with the Office of Inspector General for the Department of Corrections and Community Supervision (hereinafter DOCCS), [Green] subsequently
admitted that he purchased the cell phone for $500 in order to speak with his
wife -- with whom he purportedly was experiencing marital problems.

People v. Green,
supra.In a footnote, the court
explains that the “The password discovered in defendant's cell unlocked this
phone.”People v. Green, supra.

Finding the phone led, as noted above, to the charge against
Green, to his trial and to his conviction by the jury.People
v. Green, supra.On appeal, he
argued that

there is legally insufficient evidence
to support his conviction of promoting prison contraband in the first degree --
specifically, that the People failed to establish that the cell phone in
question constituted dangerous contraband. Insofar as is
relevant here, `[a] person is guilty of promoting prison
contraband in the first degree when . . . [b]eing a person confined in a
detention facility, he [or she] knowingly and unlawfully . . . obtains or possesses
any dangerous contraband’ (New York Penal Law § 205.25[2]).

`Dangerous contraband’ . . .is defined
as `contraband which is capable of such use as may endanger the safety or
security of a detention facility or any person therein’ (New York Penal Law § 205.00[4]).

There is no dispute that [Green] was
confined to a detention facility in September 2009, and he conceded both that
he possessed a cell phone on the day in question and that no one -- inmates,
visitors, lawyers or even facility personnel -- is allowed to bring a cell
phone into a correctional facility. As various correction officials confirmed
that cell phones were not permitted within the facility and, more to the point,
that [Green] was not authorized to possess such a device, there is no question
that [he] possessed `contraband’ within the meaning of [New York] Penal Law § 205.00(3).

Hence, the narrow question presented
for our consideration is whether there is legally sufficient evidence to
support the jury's finding that defendant possessed dangerous contraband
within the meaning of [New York] Penal Law §§
205.00(4) and 205.25(2).

People v. Green, supra
(emphasis in the original).In a
footnote, the court explains that, under New York Penal Law § 205.00(3),
contraband is “defined as ‘any article or thing which a person confined in a
detention facility is prohibited from obtaining or possessing by statute, rule,
regulation or order’”.People v. Green, supra.

has instructed that `the test for
determining whether an item is dangerous
contraband is whether its particular characteristics are such that there is a
substantial probability that the item will be used in a manner that is likely
to cause death or other serious injury, to facilitate an escape, or to bring
about other major threats to a detention facility's institutional safety or
security’ (People v. Finley, 10 NY3d 647 [New York Court of Appeals
2008]. . . .)

Notably, `the distinction between contraband
and dangerous contraband’ does not turn upon `whether an item is legal or
illegal outside of prison . . . [as][i]t is obvious that an item, such as a
razor, may be perfectly legal outside prison and yet constitute dangerous contraband
when introduced into that unpredictable environment’ (People v. Finley,
supra).

Similarly, as our case law makes clear,
the item in question need not be inherently dangerous in order to qualify as
dangerous contraband. Indeed, although weapons are perhaps the most commonly
recognized source of dangerous contraband in a prison setting, . . . courts
have -- applying the Finley test -- reached the very same
conclusion with respect to other items made, obtained or possessed by prison
inmates, including illegal quantities of drugs, . . . a disposable Bic
lighter . . . and hand-drawn maps or knotted links of wire that could be used
to facilitate an escape. . . .

Although the majority in Finley did
not expressly address this issue, Judge Pigott opined in his
concurrence/dissent that, `[i]f the contraband at issue is not inherently
dangerous . . ., the People must present specific, competent proof from which the
trier of fact may infer that use of the contraband could potentially create a
dangerous situation inside the facility’. (People v. Finley, supra [Pigott,
J., concurring in part and dissenting in part]).

As a cell phone admittedly is not
an inherently dangerous item, the question is whether the People adduced
sufficient proof to establish the cell phone's potential to be used in such a
pernicious manner as to elevate it to the level of dangerous contraband.

People v. Green, supra
(emphasis in the original).

The court then applied these principles to the Green case:

Here, the supervising superintendent
for the seven correctional facilities (including Woodbourne) . . . -- a DOCCS'
employee with 33 years of experience working inside of prisons -- testified as
to the procedures governing the inmate `call home program.’

Specifically, the superintendent
testified that each inmate is allowed to list up to 15 individuals to whom he
or she may make phone calls during certain designated hours; additional
restrictions are imposed with respect to who may be included on each inmate's
phone list, and inmates are not permitted to place calls to wireless customers.

As a security measure, inmate phone
calls are recorded and/or monitored, and the superintendent testified that
phoneprivileges are
an incentive designed to aid in maintaining good order within each secure
detention facility. For these reasons, the superintendent
testified, no one -- including a correction officer -- is permitted to bring
a cellphone into
a state correctional facility, as `[t]he primary concern is that [it] would get
into the hands of an inmate.’

People v. Green,
supra.

The Supreme Court – Appellate Division also explained that

[a]s to the specific threats posed by
the introduction of a cell phone into a prison environment, the superintendent
testified that an inmate in possession of a cell phone has the ability `to
bypass some of the protections that are in place to carry out [DOCCS'] mission
of public safety’ -- most notably, the procedures governing the recording and monitoring
of inmate phone calls -- thereby posing `a significant security risk” to the
facility.

In this regard, the superintendent
acknowledged that `criminal activity is carried on from . . . [inside
correctional] institution[s] even on phones that are monitored,’ and further
testified that an inmate's ability to bypass established security procedures
and systems by using a cell phone only enhances the potential for an inmate to
develop and/or execute `an escape plan,’ orchestrate an `injury’ to someone
inside or outside of the facility and `carry[ ] on criminal activity from
inside the [correctional] institution.’

The potential for such endeavors, in
turn, presents `a significant risk, . . . either to the public or to the
[particular] institution,’ and it is for this reason that a cell phone -- an
item that, the superintendent testified, is `deemed in demand’ by inmates -- is
viewed as `a significant item of contraband’ within a prison setting.

People v. Green,
supra.In a footnote, the court also
notes that “he investigator who interviewed [Green] after the discovery of the
cell phone testified that defendant admitted that he purchased the cell phone
because “he didn't want the facility to monitor his calls.”People
v. Green, supra.

The Supreme Court – Appellate Division then found that

[b]ased upon our review of the record
as whole -- particularly the detailed and specific testimony offered by the
supervising superintendent -- we are satisfied that the People met their burden
of establishing that the cell phone seized from defendant constituted dangerous
contraband under the test set forth in Finley.

Indeed, this matter is analogous to the
Fourth Department's decision in People v. Wilson, 56 AD3d 1266
[Supreme Court – Appellate Davison 2008], wherein the dangerous contraband
consisted of a drawing of the recreation yard and a portion of the jail in
question.

Applying the Finley analysis,
the Fourth Department concluded that `[i]tems that facilitate an escape are
properly considered dangerous contraband because they endanger the safety or
security of a facility’. People v.
Wilson, supra. That same conclusion is compelled by the proof adduced
here. To be sure, neither the piece of paper at issue in Wilson nor
the cell phone at issue here is inherently -- or even obviously -- dangerous in
and of itself, but Finley imposes no such requirement.

Rather, all that is required
under Finley is that an item's `particular characteristics are
such that there is a substantial probability that the item will be used in a
manner that is likely to cause death or other serious injury, to facilitate an
escape, or to bring about other major threats to a detention facility's institutional
safety or security’.People v. Finley, supra.

As the record before us contains
specific, competent proof from which the jury reasonably could draw such
inferences and conclude that defendant's use of a cell phone would likely
create a dangerous situation inside the correctional facility where he was incarcerated,
we discern no basis upon which to disturb the conviction.

After “a twenty-three-day . . . trial,” the jury convicted Katakis
on the Sherman Antitrust and obstruction of justice charges “but was unable to
reach a verdict on the conspiracy to commit mail fraud charge.”U.S. v.
Katakis, supra.Katakis then filed a
motion for a judgment of acquittal on the obstruction of justice charge
pursuant to Federal Rule of Criminal Procedure 29.U.S. v.
Katakis, supra.As Rule 29(c)
explains, once the jury returns a guilty verdict, the defendant has roughly fourteen
days in which to file a motion for a judgment of acquittal; if the jury
returned a guilty verdict, the judge can “set [it] aside . . . and enter an
acquittal.”Federal Rule of Criminal
Procedure 29(c).

The judge began his analysis of Katakis’ Rule 29 motion by explaining
that the superseding indictment charged and the

evidence at trial established that the
government began an investigation in 2009 of anti-competitive conspiracies
between Katakis and other purchasers at public foreclosure auctions in San
Joaquin County, California. As part of that investigation, the government
subpoenaed bank records for Katakis and his company from Oak Valley Community
Bank on August 27, 2010. In response to the subpoena, the bank sent Katakis a
letter on September 1, 2010 informing him of the subpoena and providing him
with a copy of it. The Superseding Indictment charged that Katakis
violated § 1519 `[i]n or about September 2010’ when he `deleted and
caused others to delete electronic records and documents’ and `installed and
used and caused others to install and use a software program that overwrote
deleted electronic records and documents so that they could not be viewed or
recovered.’ . . .

U.S. v. Katakis, supra.

He also noted that the prosecution “primarily, if not
exclusively,” pursued the

obstruction of justice charge by
seeking to establish that Katakis purchased and ran a program called
DriveScrubber 3 (`DriveScrubber’) on at least four computers and the company
mail server shortly after he received a copy of the subpoena.

According to the initial testimony from
the government's expert, the program successfully deleted emails on Katakis'
Dell computer, Steve Swanger's Asus computer, and the company mail server. To
rebut this evidence, Katakis offered expert testimony that discredited the
testimony from the government's expert. Katakis timely moved for a judgment of
acquittal pursuant to Rule 29(b) and, during argument, the government
indicated it would pursue the obstruction of justice charge based on [his] alleged
manual deletion of emails independent of running DriveScrubber.

U.S. v. Katakis, supra.

According to the document you can find here, Steve Swanger
was a “cooperating witness” in the investigation/prosecution.U.S. v.
Katakis, et. al., Corrected Notice of Motion and Memorandum of Points and
Authorities 2 (May 5, 2014). The
reference to Rule 29(b) in the above-quoted paragraph refers to the fact that,
as was his right, Katakis filed a motion for a judgment of acquittal before the
jury returned a verdict; and, as the rule allows, the judge reserved ruling on
the motion until after the jury had returned its verdict.U.S. v.
Katakis, supra.In this opinion, the
judge is issuing his ruling on the motion.U.S. v. Katakis, supra.

He began his ruling by noting that under Rule 29, a must
enter a judgment of acquittal

`of any offense for which the evidence
is insufficient to sustain a conviction.’ [Rule 29(a).] `A motion for Judgment
of Acquittal is reviewed on a sufficiency-of-the-evidence standard.’ U.S.
v. Graf, 610 F.3d 1148 (U.S. Court of Appeals for the 9th Circuit 2010)
(quoting U.S. v. Stoddard, 150 F.3d 1140 (U.S. Court ofAppeals for the 9th Circuit 1998)). `Under that standard, evidence supports a
conviction, if, viewed in the light most favorable to the government, it would
allow any rational trier of fact to find the essential elements of the crime
beyond a reasonable doubt.’ Id.U.S. v. Graf, supra (quoting
U.S. v. Stoddard, supra).

For the jury to have found Katakis guilty of
obstruction of justice, it had to find that the government proved each of the
following elements beyond a reasonable doubt:

[1] that defendant Katakis knowingly
altered, destroyed, or concealed electronic records or documents; [2] that
defendant Katakis acted with the intent to impede, obstruct, or influence an
investigation that he either knew of or contemplated; and [3] that the
investigation was about a matter by or within the jurisdiction of the United
States Department of Justice or Federal Bureau of Investigation.

U.S. v. Katakis, supra.

The judge began his analysis of Katakis’ motion by noting
that, “[u]nder the first element” set out above, “the government . . . had to
show that Katakis destroyed or concealed electronic documents or records, not
merely that he attempted or even intended to do so.”U.S. v.
Katakis, supra.He noted that the
prosecution’s theory in

support of the obstruction of justice
charge focused on ten Microsoft Outlook emails primarily between Katakis and
Swanger sent between September 9, 2008 and July 20, 2009. . . . The government
established that it was unable to find any of the ten emails on Katakis' Dell
computer, Swanger's Asus computer, or the mail server. . . . All ten emails
were found, however, in the deleted items bin on Swanger's Dell computer. . . .

The government now argues that the
jury's verdict can be upheld based on one of three theories: (1) Katakis deleted
the ten emails on his Dell computer, Swanger's Asus computer, and the mail
server and then overwrote them using DriveScrubber; (2) Katakis manually
deleted the ten emails on his Dell computer, Swanger's Asus computer, and the
mail server; or (3) Katakis manually moved the ten emails to the deleted items
folder in Swanger's Dell computer. The court has no doubt that the government .
. . resorted to the second and third theories after the first theory failed. In
its closing argument, the government told the jury: `All you have to do is find that Andrew
Katakis hit the delete button. That's it. It's that simple.’ . . .

U.S. v. Katakis, supra.

The judge analyzed each theory, in the order set out
above.U.S. v. Katakis, supra.As
to the DriveScrubber theory, he explained that the prosecution introduced

sufficient evidence for a jury to find Katakis
purchased DriveScrubber on September 3, 2010 and . . . installed and ran it on
his Dell computer on September 3, on Swanger's Asus and Dell computers and the
mail server on September 4, and on another computer on September 15. . . . The
undisputed evidence at trial was that DriveScrubber overwrites and therefore
permanently deletes files on the free space of a computer.

To prove Katakis used DriveScrubber to overwrite the
emails, the government offered the testimony of FBI Special Agent/Computer
Forensic Examiner Scott Medlin. Medlin opined that the ten emails were no
longer on Katakis’ Dell computer, Swanger's Asus computer, or the mail server
because they had been double-deleted and then overwritten by DriveScrubber.
Medlin explained that this could occur if a user deletes an email in Outlook,
then double-deletes the email by deleting the email from the Outlook deleted
items bin. According to Medlin's testimony . . . , when an Outlook email is
double-deleted, the email is sent to the free space of the computer. . . .
Because none of the ten emails could be found on Katakis' Dell computer,
Swanger's Asus computer, or the mail server, and Katakis had installed
DriveScrubber on those devices, Medlin concluded Katakis must have
double-deleted the emails and then used DriveScrubber to overwrite them in the
free space. . . .

U.S. v. Katakis, supra.

The judge also explained, though, that in presenting the defense’s case,
Katakis

offered expert testimony from Donald Vilfer that
discredited Medlin's testimony and the government's theory. Vilfer testified
that, because the computers and mail server at issue were part of a Microsoft
Exchange Database, emails were sent directly to the Exchange Database upon
double-deletion. . . . Vilfer explained that DriveScrubber could not have
deleted any of the double-deleted emails from the free space because, as they
were stored in the Exchange Database, they never entered the free space. . . .He
further explained that DriveScrubber could not affect a doubledeleted email
stored in the Exchange Database unless the entire operating system for a
computer or mail server was `scrubbed’ so that nothing remained. . . .

U.S. v. Katakis, supra.In a footnote, the judge points out that the
prosecution “neither suggested nor presented
evidence indicating that Katakis scrubbed, or destroyed, the operating systems
of the computers or mail server.”U.S. v. Katakis, supra.

He then noted that, given Vilfer’s testimony, the prosecution recalled
Medlin

in its rebuttal case. Departing from his earlier
testimony, Medlin confirmed the accuracy of Vilfer's testimony: that
double-deleted Outlook emails on the computers and mail server could not have
been affected by DriveScrubber because they were stored in the Exchange
Database and never entered the free space on the computers or mail server.

U.S. v. Katakis, supra.The judge therefore found that a

rational jury could not have found that
Katakis destroyed or concealed any of the emails in question using
DriveScrubber because the undisputed evidence from both experts at trial was
that DriveScrubber could only overwrite emails in the free space of the
computers or mail server and the emails never entered the free space.

U.S. v. Katakis, supra.

He then took up the prosecution’s second theory – that
Katakis manually deleted the emails.U.S. v. Katakis, supra.He noted that there was “no testimony” at
trial about

Katakis manually deleting the emails on
his Dell computer, Swanger's Asus computer, or the mail server. Although
Swanger testified that he saw Katakis searching for documents prior to running
DriveScrubber on his Asus computer, when asked whether he `observe[d] Andrew Katakis
deleting any documents,’ Swanger testified: `I wasn't sure if he was-what he
was doing. I saw him on [the Asus computer], clicking and moving things around,
but I–I didn't-I didn't pay attention closely, on that computer, what it was he
was doing.’ . . . Swanger also `wasn't quite sure what was deleted and what
wasn't [on the Asus], because [he] didn't have a clear memory of what was
there.’ . . .

The
government was thus left to rely on the inference that, because the ten emails
in question were not found on Katakis' Dell computer, Swanger's Asus computer,
or the mail server, Katakis must have double-deleted them. . . .

U.S. v. Katakis, supra.

The judge explained that, under Rule 29, he was required to
“accept this inference . . . and assume
the jury could have found that Katakis double-deleted the emails on his
computer, Swanger's Asus computer, and the mail server” and that “double-deleting
an email is sufficient to destroy or conceal the email.”U.S. v.
Katakis, supra.He noted, however,
that even though he made those assumptions, the evidence was still not
sufficient to prove Katakis violated 18 U.S. Code § 1519.U.S. v.
Katakis, supra.

To prove that, the government had to prove, beyond a
reasonable doubt, that when “Katakis double-deleted the emails he knew of or
contemplated the investigation at that time.”U.S. v. Katakis, supra.To establish that, the prosecution
arguedthat Katakis learned about the
criminal investigation when he received a copy of a bank subpoena “on September
1, 2010.”U.S. v. Katakis, supra.The
judge found, though, that while

there was sufficient evidence for the
jury to find that Katakis knew about the investigation in September 2010,there was no evidence from
which the jury could have inferred that Katakis double-deleted the emails on a
date “reasonably near” September 2010. In fact, there was not even
circumstantial evidence from which the jury could have inferred an approximate
date when Katakis double-deleted the emails.

U.S. v. Katakis, supra.He noted that the prosecution did not “even
[present] even circumstantial evidence from which the jury could have inferred
an approximate date when Katakis double-deleted the emails.”U.S. v.
Katakis, supra.He found, therefore,
that “a rational jury could not have found Katakis violated § 1519 by
double-deleting the emails on his Dell computer, Swanger's Asus computer, or
the mail server because there was no evidence from which the jury could infer
that he did so with the requisite intent to obstruct investigation that he knew
of or contemplated.”U.S. v. Katakis, supra.

The judge then took up the prosecution’s third theory, which
relied on Swanger’s testimony that when Katakis installed DriveScrubber on Swanger’s
Dell computer, “he saw Katakis deleting emails on that computer and, when
Swanger returned to work on Monday, almost all of the emails were gone from his
Dell computer.”U.S. v. Katakis, supra.The
judge noted that Medlin and Vilfer “testified that the ten emails in question
were recovered from the deleted items bin on Swanger's Dell computer.” U.S. v. Katakis, supra.And he explained that “the government
contends that placing the emails in the deleted items bin on Swanger's Dell
computer constituted destruction or concealment under § 1519.” U.S. v. Katakis, supra.

The judge pointed out, however, that the “undisputed
evidence” at trial was that

deleting an Outlook email places the
email in the deleted items bin and the email remains in that folder unless and
until a user takes further action. . . . The user can move the email back into
his inbox, into a different Outlook folder, or doubledelete the email by
deleting it from the deleted items bin. . . . There was sufficient evidence at
trial for the jury to find that Katakis deleted the ten emails on Swanger's
Dell computer and thereby moved them from the inbox to the deleted items
bin.

U.S. v. Katakis, supra.
He also noted that to support a conviction for violating 18 U.S. Code § 1519,
the prosecution must have introduced sufficient evidence from which

the jury could find that placing the
emails in the deleted items bin destroyed or concealed them. At trial, however,
the undisputed evidence was that the ten emails on Swanger's Dell computer were
recovered and thus there was no evidence from which the jury could infer that
they were destroyed. The government cannot simply rely on the label of `deleting’
when it is undisputed that `deleting’ an email within Outlook simply moves it
to another folder where it remains easily accessible.

U.S. v. Katakis, supra.

He also noted there was no evidence from which a reasonable
jury “could infer that placing an email in the deleted items bin conceals it
from the government” and that Medlin, “the government's own expert, testified
how easy it is to retrieve an Outlook email from a deleted items bin”. U.S. v. Katakis, supra.So he found that a “rational jury . . . could
not find that Katakis violated § 1519 by deleting the emails on Swanger's
Dell computer because there was no evidence from which the jury could infer
that Katakis destroyed or concealed the emails.” U.S. v. Katakis, supra.

The judge therefore granted Katakis’ motion for judgment of
acquittal under Rule 29 and ordered that the “verdict of guilty against Katakis
on Count Three is hereby set aside, and the Clerk is instructed to enter a
judgment of acquittal in favor of . . . Katakis on Count Three of the Superseding
Indictment.” U.S. v. Katakis, supra.

The District Court Judge who has the case
began his analysis of the legal issues involved in the motion to suppress by
explaining how the case arose:

On November 26, 2011, in the
afternoon, Lichtenberger was with Karley Holmes, his girlfriend, at their
shared home in Cridersville, Ohio. They lived there with Holmes's mother, who
owned the residence. That day, two friends of Holmes's mother came over to the
residence and told both Holmes and her mother that Lichtenberger had been
previously convicted of child pornography offenses.

One of the mother's friends then called the police.
Several officers, including Douglas Huston, from the Cridersville Police
Department came to the residence. Holmes requested that the police escort
Lichtenberger off the property because she did not want him living there
anymore. Huston determined that Lichtenberger had an active warrant for his
arrest for failing to register as a sex offender, arrested him, and removed him
from the property.

Later that day, Holmes went into the bedroom she
shared with Lichtenberger and retrieved his laptop. At the suppression hearing,
she testified that she wanted to access his laptop because [he] `would never
let me use it or be near him when he was using it and I wanted to know why.’ .
. . The laptop was password protected, but Holmes hacked the laptop by running
a password recovery program. She then changed the password.

Once she accessed the laptop, she clicked on
different folders and eventually found thumbnails images of adults engaging in
sexual acts with minors. She clicked on one of the thumbnails to see the larger
image. When she found the first image, she took the laptop to the kitchen to
show her mother. There, they clicked through several more sexually-explicit
images involving minors. She closed the laptop and called the Cridersville
Police Department.

U.S. v. Lichtenberger, supra.

Officer Huston responded to Holmes’ call by

return[ing] to the residence. In the kitchen,
Holmes told [Huston] she found child pornography on [Lichtenberger’s] laptop.
She also told him the laptop belonged to [Lichtenberger] and he was the only
one who would access and use it. She explained that one time she tried to use
the laptop and [he] immediately became upset and told her to stay away from it.
Lastly, Holmes told Huston that she hacked the laptop to access it because it
was password protected.

Huston then asked Holmes if she
could boot up the laptop to show him what she had discovered. Holmes opened the
laptop lid and booted it up to take it out of sleep mode. She then reentered
the new password she created. Huston asked her to show him the images. Holmes
opened several folders and began clicking on random thumbnail images to show
him. Huston recognized those images as child pornography. He then asked Holmes
to shut down the laptop.

After consulting with his police
chief over the phone, Huston asked Holmes to retrieve other electronics
belonging to Lichtenberger. She gave him Lichtenberger's cell phone, flash
drive, and some marijuana. Huston then left the premises with those items, the
laptop, and its power cord.

U.S. v. Lichtenberger, supra.

The judge then took up the issue Lichtenberger raised in his
motion to suppress, noting that the 4th Amendment “establishes [the]
`right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures.’ U.S. v. Lichtenberger, supra.As I have
noted in prior posts, the 4th Amendment only applies to “state
action,” i.e., to searches and seizures that are carried out by agents of the
state, such as police officers.As this
judge explained, under the

private search doctrine, . . . this protection applies only
to government action. U.S. v. Jacobsen, 466 U.S. 109 (1984).
It is`wholly inapplicable “to a search or seizure, even an unreasonable one,
effected by a private individual not acting as an agent of the Government or
with the participation or knowledge of any governmental official.”’ U.S. v. Jacobsen, supra (quoting Walterv. U.S., 447 U.S. 649 (1980) (Blackmun, J., dissenting)).

U.S. v. Lichtenberger, supra.

That
exception would seem to apply here, since Holmes was not an officer nor was she
apparently acting as an agent of the police.Lichtenberger, though, claimed motion to suppress the evidence Holmes
turned over to the police should be suppressed

for four reasons: 1) the private search doctrine does not
apply to private residences; 2) Holmes acted as an agent of Officer Huston; 3)
Huston's search exceeded the scope of Holmes's initial search; and 4) in any
event, Huston did not have probable cause to search the computer.

U.S. v. Lichtenberger, supra.The judge
then analyzed each argument, in order.

As to the
first issue, Lichtenberger argued that the private search doctrine,

as articulated in Jacobsen,
supra, does not apply in this case because the [U.S. Court of Appeals
for the 6th Circuit] has refused to extend its applicability to
private residences per its holding in U.S. v. Allen, 106 F.3d
695 (U.S. Court of Appeals for the 6th Circuit 1997). Thus, [Lichtenberger] contends that because he resided in
the home in which he kept his laptop and it was password protected, he had a
legitimate and significant privacy interest which Officer Huston unreasonably
breached.

The government argues Allen is
not applicable in this case because neither Holmes nor Huston conducted a
search of the residence bur rather a search of only Lichtenberger's laptop. Relying
on Jacobsen, supra, the government contends that the search of
the laptop is akin to the search of a suitcase, locker, or container -- not an
entire residence.

U.S. v. Lichtenberger, supra.

The judge
noted that in Jacobsen, Federal
Express employees opened a package

damaged in transit. Inside the package was crumpled
newspapers covering a ten-inch tube. The employees cut open the tube and found
four zip-lock plastic bags containing white powder. . . .They
called the Drug Enforcement Administration (DEA) and then put the bags back in
the tube and the tube and newspapers back into the box. When the DEA agent
arrived, he saw the open box and removed the four bags from the tube, opened
them, and identified the white substance inside them as cocaine. . . .

The Supreme Court held that the Fed Ex employees' initial
search was a private action that did not violate the Fourth Amendment because
of their private character. . . . Reasoning that the DEA agent
acted merely to confirm the Fed Ex employees' recollection, the Court further
held that the DEA agent's viewing `of what a private party had freely made
available for his inspection did not violate the 4th Amendment.’ . . .

U.S. v. Lichtenberger, supra (quoting U.S.
v. Jacobsen, supra).

He also
noted that in U.S. v. Allen, supra,

the manager of a motel suspected [Allen] did not pay his bill
so she entered his motel room with her key to see if he was still there. She
observed large quantities of marijuana in the bathroom as well as bricks of
marijuana laying in open dresser drawers. . . . She then called the
police who entered the motel room and viewed it for about fifteen seconds,
observing the marijuana. The officers left the room and waited for [Allen] to
return to the motel room whereupon they arrested him.

U.S. v. Lichtenberger, supra.

The judge
also pointed out that the 6th Circuit’s opinion in U.S. v. Allen, supra, “distinguished the
motel room from the package in Jacobsen,
noting that the package only contained contraband while the motel room was a
temporary residence containing personal possessions.”U.S. v.
Lichtenberger, supra.The 6th
Circuit found Allen’s “privacy interest was extinguished because his rental
period had elapsed and thus he no longer had a legitimate expectation of
privacy in the room”, which meant the motel manager’s consent to search the
room did not implicate Allen’s 4th Amendment rights. U.S. v. Lichtenberger, supra.

This judge
found the prosecution’s argument “persuasive” because “[u]nlike Allen,” the

officer here did not search Lichtenberger's residence -- only
his laptop. Holmes called the police to her house and Huston spent time only in
the kitchen, a space shared by Holmes, her mother, and Lichtenberger. In Allen, the
officers searched the defendant's entire residence which had been under only
his control until the manager entered it. . . .

While a laptop is not like the simple container in Jacobsen, it
also is not the same as a private residence. Laptops are highly personal items
which contain a multitude of personal information, and laptop owner's have a
reasonable expectation of privacy in their files. At the same time, laptops do
not and cannot fulfill the same function as a private residence.

U.S. v. Lichtenberger, supra.The judge
therefore found that the private search doctrine applied here, so there was no
4th Amendment violation. U.S.
v. Lichtenberger, supra.

He then
took up Lichtenberger’s second argument: that “Holmes acted as an agent of
Officer Huston.”U.S. v. Lichtenberger, supra.He noted that “I must determine whether Holmes acted as an agent of
Officer Huston” and, “If she did, I must suppress the laptop as evidence.”U.S. v.
Lichtenberger, supra.

two-factor analysis to determine whether a private party acts
as an agent of the government: 1) the government's knowledge or acquiescence to
the search; and 2) the intent of the party performing the search. U.S.
v. Bowers, 594 F.3d 522 (2010). . . . If `the intent of the private
party conducting the search is entirely independent of the
government's intent to collect evidence for use in a criminal prosecution,’
then “the private party is not an agent of the government.’. U.S. v. Lichtenberger, supra.

U.S. v. Bowers, supra (emphasis in the original).

The
prosecution claimed Holmes’ intent in searching Lichtenberger’s laptop was to

satisfy her curiosity. She testified she
was not looking for evidence of a crime but was `just generally looking for
anything.’ . . . The government also notes that when the police first came to Holmes's
residence to arrest Lichtenberger, no one instructed or encouraged Holmes to
search the home for evidence.

The government contends that because
Holmes was the person who hacked into the laptop, clicked on the folders, and
controlled the laptop, there was no governmental action. Finally, the government contends that Huston's
actions to boot up the computer and enlarge three or four images were merely to
confirm Holmes's complaint. In other words, he never participated or
affirmatively encouraged Holmes's private search.

U.S. v. Lichtenberger, supra.

Lichtenberger,
on the other hand, argued that the prosecution was

conflating the first and second
searches. He agrees that the first search, in which Holmes discovered the child
pornography, is not government action. He contends that the second search is,
however, because Officer Huston actively directed Holmes to conduct the search,
thereby making her an agent of the government.

Lichtenberger
argues that Huston specifically asked Holmes to boot up the computer and show
him the pictures. He contends that when Holmes showed him the images, per his
request, her intent was not entirely independent of the government's intent to
collect evidence. At that point, she was directly following his instructions
and, accordingly, her intent was to assist him in his investigation.

U.S. v. Lichtenberger, supra.

The judge agreed with Lichtenberger, explaining that

[i[t is uncontested that the first
search was entirely a private action. Thus, the fact the police officers did
not ask or encourage Holmes to search for evidence when they arrested
Lichtenberger is simply of no relevance. As Holmes testified, she acted out of
curiosity.

The second search, however, constitutes
government action. When Huston came to Holmes's residence, he gave her several
directions. He directed her to boot up the laptop and she complied. He asked
her to see the images and she showed him. Even though he was not touching the
laptop, he would not have seen the images without instructing Holmes to show
them to him.By giving her instructions and directing her
actions, she became an agent of the officer. . . .

U.S. v. Lichtenberger, supra.

He also noted that Huston

specifically asked Holmes to open the
laptop and show him the images. He was actively directing her, not merely
passively viewing. Thus, this second search was not private in nature. It was
at the behest of Huston, who, arguably, could have gotten a warrant to search
the laptop. Holmes opening the closed laptop is no different than someone
opening a door because an officer told her to do so. Likewise, Holmes opening
the laptop files was no different than if she had been told to open dresser
drawers, a closet, or a physical file cabinet. Both activities were at the
direction and subject to the control of the officer.

U.S. v. Lichtenberger, supra.

The judge therefore held that “the government violated [Lichtenberger’s]
4th Amendment rights by searching his laptop without getting a warrant,” which
means that the other arguments Lichtenberger raised in his motion to suppress
were “moot”, i.e., it was not necessary to address them to resolve the issues
raised by the motion.U.S. v.
Lichtenberger, supra.He consequently ordered that the motion to
suppress “be, and the same hereby is granted.”U.S. v. Lichtenberger, supra.